Xiao Hui v. Symon Wong Esq, Magistrate

HCAL 66/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 66 OF 2014

------------------------

------------------------

-----------------------

DECISION

-----------------------

1.The applicant is an Australian resident.

2.He is said by the Australian authority to have committed various insider trading offences in Australia in July 2011.

3.He came to Hong Kong in November 2011 and did not return to Australia in breach of a court order issued by the Australian court requiring him to go back to Australia by 26 November 2011.  He has since remained in Hong Kong.

4.In November 2013, the Australian government requested Hong Kong to arrest and surrender the applicant to the Australian government under the agreement for the surrender of wanted and/or convicted persons made between the two governments.

5.It is common ground that the surrender procedures are governed by the Fugitive Offenders Ordinance (Cap 503) (“FOO”).

6.The committal hearing under s 10 of the FOO against the applicant is now before the learned Magistrate (the putative respondent herein), which was commenced yesterday and will continue on Monday, Tuesday and Friday next week.

7.This is the hearing of the applicant’s urgent leave application to apply for judicial review and an interim order.

8.The decision that the applicant intends to challenge is the Magistrate’s decision (“the Decision”) made on 28 April 2014 to refuse the applicant’s application to adjourn the committal proceedings.

9.The applicant says the Decision is tainted with procedural unfairness[1], is Wednesbury unreasonable[2] and is inconsistent with the applicant’s legitimate expectation[3].

10.All these grounds are premised on the applicant’s contentions arising from the fact that he has lodged his torture and asylum claims (“the asylum claims”) on 28 February 2014 with the Immigration Department under the Unified Screening Mechanism (“USM”).  The asylum claims are made under Article 3 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“BORO”) and under Article 33 of the United Nations Convention relating to the Status of Refugees 1951 (“the Refugee Convention”).

11.Mr Tibbo for the applicant says the international jurisprudence[4] shows that the determination of the applicant’s asylum claims shall take priority over the legal process to surrender him to the Australian government under the FOO.

12.In the premises, the applicant contends that the committal proceedings should be stayed or adjourned pending the determination of his asylum claims (which he says would take at least few years) according to this jurisprudence.  The Magistrate’s refusal to adjourn the committal proceedings therefore (the applicant says):

(1)   amounts to procedural unfairness in holding the committal hearing years before the determination of his asylum claims;

(2)   is Wednesbury unreasonable in light of this jurisprudence;

(3)   is in breach of his legitimate expectation that (in light of this jurisprudence) he would not be prosecuted before the outcome of his asylum claims.

13.The applicant thus says that the Decision should be quashed and there should be an order effectively to stay the committal proceedings pending the outcome of his asylum claims.  He further asks this court to order an interim stay of the committal proceedings if leave is granted pending the determination of the judicial review.

14.The application is in my view without merits for the following reasons:

(1)   The application is clearly premature.  Even taking the applicant’s case to the highest in assuming (without deciding[5]) that the legal jurisprudence is that he should not be surrendered to the Australian government until his asylum claims are determined, he could well challenge the decision to execute the order for surrender, if and when one is made, on this basis.  The committal proceedings are but only one of the stages (as recognised by the applicant) leading to the Chief Executive’s ultimate decision of whether or not to make a surrender order under the FOO.

(2)   This is particularly so in light of the following:

(a)   It is pertinent to note that even if a person is committed under the committal proceedings envisaged in the FOO, the Chief Executive (“CE”) has a discretion under s 13(1) of the FOO to decide whether or not to make a surrender order.

(b)   Further, ss 13(2A) and (2B) of the FOO expressly provide that the CE should either not to make an order for surrender, or if one is already made, suspend its execution, before a committed person’s torture claim (if lodged) is determined.  I of course note that the torture claims in these provisions are by definition ones that are made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), which are different from the applicant’s asylum claims.  However, these provisions were added in 2012 before the Court of Final Appeal’s decisions in Ubamaka v Secretary for Security[6] and C v Director of Immigration[7] were handed down, whereby the Court of Final Appeal have decided (contrary to the Government’s hitherto belief and practice) that the Director has a duty to screen the types of claims now made by the applicant under the BORO and the Refugee Convention.  It was in light of these decisions that the Government has implemented the USM to screen also the types of the claims as the applicant’s asylum claims.

(c)   I n these circumstances, if the applicant is eventually committed under the committal proceedings, I would expect that the CE would take into account the applicant’s asylum claims in deciding whether to exercise his discretion to make a surrender order against the applicant[8].

(d)   Moreover, the committal proceedings are only to determine if there is a prima facie case as to whether the applicant has committed the offences the Australian authority says he has.  The committal itself is not the making of the order of surrender.  The determination of the committal hearing therefore would not prejudice or affect the process and subsequent determination of the applicant’s asylum claims.

15.However, Mr Tibbo submits that the applicant would be prejudiced in his “defence” in the committal proceedings if the committal hearing is not adjourned pending the determination of the asylum claims.  This is so as the applicant is entitled and would want to rely on s 5(1)(c) of the FOO in the committal to say that the Australian prosecution is premised on race, religion, nationality or political opinions, and thus he should not be so committed.  However, in order to pursue that ground, the applicant would need to (says Mr Tibbo) submit to the Magistrate information and materials that are allegedly highly sensitive and confidential, and cannot be exposed to the public as well as both the Australian government and the Chinese government.  Otherwise, the applicant and other third parties’ lives would be potentially at risk.

16.Purely for the sake of arguments, even if there is such highly confidential information as alleged, this in my view would not assist Mr Tibbo in the present application.

17.Under s 123 of the Criminal Procedures Ordinance (Cap 221), the Magistrate has power to order any parts of the proceedings before it to be heard in camera in appropriate cases.  There are therefore ways not to render any such alleged highly confidential information to be exposed to the public in the committal hearing. The applicant has not applied to or requested the Magistrate to make any such order.  It is thus premature for the applicant to say that he cannot rely on those alleged highly confidential materials in the committal hearing in order to rely on s 5(1)(c) of the FOO.

18.In relation to this, Mr Tibbo also says the alleged confidential information, even if heard in the committal proceedings in camera, would then be passed on to the Australian government (as a party needing to respond to any of those allegations) and then further to the Chinese government via the Australian government or the Hong Kong Government.

19.I am also not convinced by these submissions.

20.It is Mr Tibbo’s own submissions that it is necessary to stay the committal proceedings until after the determination of the asylum claims because (a) if the applicant is successful in the claims, there would be no more need to have the committal hearing since he cannot be surrendered (or refouled) to Australia, and (b) if he is however unsuccessful in the asylum claims, he would by then rely on the confidential information and materials in the committal hearing to pursue the s 5(1)(c) “defence”.  In light of this, I cannot see how he could justify his earlier submissions about the fear of endangering the applicant’s and other third parties’ lives if the applicant has to reveal the alleged confidential information in the committal proceedings, because it appears that the said alleged fear would no longer matter if he is unsuccessful in his asylum claims and would have to fight against the committal and surrender process.

21.Further, the submission that the alleged confidential information, once passed to the Australian government and the Hong Kong government by reason of the surrender proceedings, would then be further given to the Chinese government is a very serious allegation, which is a bare assertion and not supported by any evidence.  I therefore also do not accept this part of the submissions which are made without any proper basis.

22.Moreover, the submission (if it is so intended) that it is feared that the Hong Kong Government would pass on the alleged confidential information to the Chinese government is not only not backed by any evidence but also inconsistent with the applicant’s own case that he would be relying on this information to support his asylum claims, which would be considered by the Immigration Department.

23.It is also pertinent to note that, as submitted by Ms Lam of the Department of Justice, even if (without accepting it) the applicant cannot raise the s 5(1)(c) ground as alleged in the committal hearing, and if he is committed, he can still raise it at an application for habeas corpus and before the CE when he considers whether or not to make the surrender order.  See: ss 5(1) and (7) and 12(4) of the FOO.

24.In this respect, it is also worth noting that Ms Lam has also referred this court to the decision of The Queen on the application of Karpichkov and Marais v Lativia and the Republic of South Africa and the Secretary of State for the Home Department [2001] EWHC Admin 329, at paragraphs 4-6 per Kennedy LJ, where it is said that the asylum claims and the extradition process should both proceed on their own expeditiously and in parallel.  As pointed out by Ms Lam, this decision is made on the UK Extradition Act 1989, the Act which the FOO is largely modelled upon[9].  On the other hand, the case of R(Evgenyi) v Secretary of State for the Home Department [2011] EWCA Civ 91 (10 February 2011) relied on by the applicant (see above) is a decision in relation to the UK Extradition Act 2003, which is different from the FOO.

25.In the premises, I find the application premature and without merits, and do not think any of the grounds raised in the Form 86 are reasonably arguable.

26.I would refuse to grant leave.

27.I would also like to mention that the Decision was made on 28 April 2014.  The hearing dates of the committal (ie, 12, 16, 17 and 20 June) were also fixed on that day.  However, this leave application was only made on 10 June 2014, just two days before the commencement of the committal hearing.  Then, the applicant’s legal advisers by a letter dated 12 June and faxed to this court on the same day asked for an urgent dealing with the leave application (which includes an application for an interim stay of the committal hearing if the leave application is not determined yet).  The court hears this application today (13 June) at 4:00pm.

28.There is a delay of more than one month in making the application.  Mr Tibbo says it is because they needed to wait for the provision of the audio recordings of the hearing of the adjournment application before settling the intended judicial review application, and that recordings were provided late.

29.I do not accept this explanation.  In my view, looking at the grounds raised in the Form 86, and given that counsel and his instructing solicitors would have his own notes of the hearing and that they are fully aware of the grounds relied on by the applicant in asking for an adjournment, I do not think waiting for the audio recordings of the hearing is a good reason to justify the delay, in particular if the applicant seriously thinks that the committal hearing would severely prejudice his right as alleged.

30.In the circumstances, and in light of the chronology I have summarised at paragraph 27 above, in my view, the leave application together with the interim relief sought are made hoping to derail or delay the committal proceedings unjustifiably.  This should not be condoned.

Mr Robert Tibbo, instructed by Ho Tse Wai, Philip Li & Partners, for the applicant

Ms Linda Lam, DPGC and Ms Dora Si, SGC (Ag), for the Secretary for Justice on behalf of the Government of Australia, as the putative interested party